Worse Than Roe?

There has been a lot of lot of talk since the Supreme Court decision in the case of Lawrence v. Texas, a dispute over Texas’ law making sodomy illegal. The Supreme Court overturned that law by a vote of 6 to 3, saying that such laws “demean the lives of homosexual persons” and infringe upon their right to privacy.

Let me tell you right now: Lawrence is a devastating decision, worse than most people think  and for reasons that haven’t fully dawned on them yet.

I have to admit, the implications of this decision hadn’t occurred to me yet, either, but after talking to my friend Professor Robert George of Princeton, I can say that this is without question the most damaging decision handed down by the courts since Roe v. Wade  one that will have even more far-reaching effects than its predecessor.

George is a political philosopher and a very smart guy. He pointed out a few things about the decision that I hadn’t noticed. And because this decision is so huge, I wanted to make sure that I passed on his concerns to you.

Believe me, this is vitally important.

First, a little background history. As you may already know, Roe v. Wade based its decision to make abortion legal upon a woman’s right to privacy, which the court found in the 14th amendment in the Constitution. The problem is, the 14th amendment doesn’t give a person a right to privacy. What the 14th amendment really guarantees is that no state “shall deprive any person of life, liberty, or property, without due process of the law.” You won’t find a right to privacy here or in any other part of the Constitution.

The 14th amendment only protects rights by due process, meaning that they can’t be taken from you except by formal procedures in accordance with established law. In other words, you can’t be executed (deprived of life), jailed (deprived of liberty), or fined (deprived of property) without the government going through the proper procedure of arresting you, giving you a fair trial, and so on.

So what does this have to do with a right to privacy? Absolutely nothing. And yet this is what the Roe decision is based on. Legal scholars, both conservative and liberal alike, have denounced this faulty reasoning that they call “substantive due process.” It’s really a contradiction in terms: Instead of simply guaranteeing that you will receive certain treatment by the law, the law has been stretched to mean that you will also be guaranteed a certain result.

What began in Roe has now come to fruition in Lawrence: A certain privileged class of actions is being protected from legal restriction by the Supreme Court. First abortion, now sodomy  what will be next? Euthanasia?

It’s up to the people to vote into effect certain laws through their legislature. It’s the only fair way of guaranteeing that what the people want becomes the law of the land, rather than what a few justices on the Supreme Court want.

But this, George explained to me, is what happened in Roe v. Wade. The justices forced their hand to produce a certain outcome. Since then, the Supreme Court has avoided using the tricky (and completely false) “substantive due process” rationale in deciding cases.

That is, until now.

The six justices who voted to repeal the sodomy law yesterday did so because they said the law produced an unfair outcome  unfair because it discriminates against homosexuals.

But the law was enacted according to the rules of due process  the people supported it, the state legislature wrote it, and the governor signed it. There is nothing unfair about the process it underwent in becoming law. If people today feel that the law is unfair or outdated, they can vote to repeal it just as they voted to enact it, and that would be a fair process.

But for the court to say that the law produced an unfair outcome takes this power from the people and puts it in the hands of nine Supreme Court justices. This was certainly never the intention of the 14th amendment.

Nevertheless, that’s what the Supreme Court did. And not only that  in his statement for the court, Justice Anthony Kennedy made his decision so broad that any case that comes before the court in the future could appeal to “substantive due process” to dispense with the law and get the outcome they want.

And that is what’s really scary about this decision. With Roe, the decision applied only to abortion rights. But with Lawrence, the door has been opened for other kinds of sexual behavior to be exempted from restrictive legislation as well.

For example, if a case comes before the Supreme Court arguing in favor of incest, according to the Lawrence decision, there’s no reason why incest should be outlawed. The court no longer has any principled basis for upholding laws that prohibit incest, bigamy, bestiality, you name it.

So what does this mean for the future? Well, think about this: Because Texas’ sodomy law has been struck down, all the remaining states with sodomy laws will have to dispense with them as well.

And what about homosexual marriage? The Massachusetts legislature is considering that issue right now. If they decide in favor of it, any homosexual marriage contracted in Massachusetts has to be acknowledged in every other state.

With sodomy laws still in place, this wouldn’t have been the case. No state is forced to accept contracts from another state that go against their own laws and policies. But now that the sodomy laws will be removed, no state has a legal defense against homosexual

marriage. They’ll all fall like dominoes.

The last hope for defeating homosexual marriage lies in a Constitutional amendment that explicitly defines marriage as the union of one man and one woman. The Alliance for Marriage, headed up by Matt Daniels, is leading the way in calling for the Federal Marriage Amendment to do just that.

If the Supreme Court finds the amendment unconstitutional  which, thanks to Lawrence, they now claim the right to do  then we’re sunk. The homosexual agenda will have won the day.

And this is why it’s absolutely crucial that Catholics, Evangelicals, and all social conservatives in America band together now to stop them. There has been infighting among the groups in the past  some think the Federal Marriage Amendment is too strong, others think it isn’t strong enough  but we have to put those differences aside and make the best we can with what we have.

CRISIS ran an article on just this problem in our July/August issue last year, “Can Same-Sex Marriage Be Stopped?”, encouraging people to take note of the slow change that is already beginning. With Lawrence decided, we can’t spare another minute. Visit the Alliance’s Website, to find out more about how you can help.

I hate to end on such a grim note, but the sooner we understand the danger that marriage in America is in, the sooner we can act to save it.